Tro v The State of Western Australia - [2018] WASCA 231

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   TRO -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 231
CORAM:   MAZZA JA
BEECH JA
HALL J

HEARD:   5 NOVEMBER 2018
DELIVERED          :   5 NOVEMBER 2018
PUBLISHED           :   18 JANUARY 2019
FILE NO/S:   CACR 37 of 2018
BETWEEN:   TRO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BIRMINGHAM DCJ
File Number             :   IND/KUN 21/2016

Catchwords:

Nil

Legislation:

Nil

Result:

Leave to appeal granted
Appeal allowed
Conviction set aside
Retrial ordered

Category: B

Representation:

Counsel:

Appellant	:	Mr D D Brunello & Ms A A Woldan
Respondent	:	Mr J A Scholz

Solicitors:

Appellant	:	Aboriginal Legal Service of Western Australia
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Grubisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524
Helton v Allen [1940] HCA 20; (1940) 63 CLR 691
OKS v The State of Western Australia [2018] WASCA 48; (2018) 52 WAR 482
R v Cohen & Bateman (1909) 2 Cr App R 197
R v Ireland [No 2] [1971] SASR 6
Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319
Wells v The State of Western Australia [2017] WASCA 27

REASONS OF THE COURT:

This appeal against conviction was heard on 5 November 2018. At the conclusion of the hearing the court made orders granting leave to appeal, allowing the appeal, setting aside the conviction and reserving the question of whether there should be a retrial. The appellant was granted bail pending this court's decision on the question of whether there should be a retrial. Our reasons for making those orders and for coming to the conclusion that there should be a retrial on the original charge are as follows.
The appellant and his brother were convicted after trial on charges that on or about 6 July 2015 each of them sexually penetrated a child under the age of 13 years by penetrating her anus with his penis. The brother was the subject of count one in the indictment and the appellant was the subject of count two. The offences were alleged to have been committed against a 9‑year‑old girl. Her evidence was critical to the prosecution case. The trial judge directed the jury regarding the absence of injuries and the demeanour of the complainant immediately after the alleged incident. The appellant's grounds of appeal are that the directions on these issues contained material errors that resulted in a miscarriage of justice and that, in any event, the verdict was unreasonable and cannot be supported having regard to the evidence.
The respondent conceded that there was an error in the direction relating to the demeanour of the complainant. That concession was properly made. We have also concluded that there was a material error in the directions regarding the absence of injuries. Those errors occasioned a miscarriage of justice. The success of the grounds relating to those directions required that the appeal be allowed and the conviction be set aside.
As to whether there should be a retrial, it is appropriate to consider this question in the context of the ground that asserts that the verdict was unreasonable or cannot be supported having regard to the evidence. Having reviewed the evidence, it is our view that it would be open to a properly instructed jury to be satisfied beyond reasonable doubt of the appellant's guilt of the charge of sexual penetration of a child. Accordingly, it is appropriate to order that there be a retrial on that count.

The prosecution case

The complainant was a 9‑year‑old girl living in a small regional Aboriginal community with her family. The appellant and his brother lived at another house in the community but were not well known to the complainant.[1]
[1] Trial ts 327 - 328.
On 6 July 2015 the complainant was walking in the community with her sisters when she was offered a lolly by a man. The prosecution alleged that the man was the appellant's brother. He put his hand over her mouth, took her to a room in a house, removed her clothes, placed her on a cupboard and penetrated her anus with his penis. It was alleged that the appellant was also present at this time and also penetrated the complainant in the same manner. The complainant said that they took turns and spoke to each other, saying, 'Your turn, your turn'. She said that the penetration stopped because she was crying.[2]
[2] Trial ts 328 - 329.
The complainant then walked to her home and told her great‑grandmother that the appellant's brother had raped her.[3] At around the same time, the complainant's mother noticed that she appeared to be bleeding and took her to see a nurse at the community nursing station.[4] It was accepted at the trial that the bleeding was associated with the complainant having her first menstrual period. However, the nurse asked the complainant if she had been interfered with and she said, 'No'.[5] Another nurse met with the complainant on 7 July 2015. On that occasion, the complainant stated that she had been raped by the appellant's brother and identified a house where it had occurred.[6]
[3] Trial ts 329.
[4] Trial ts 334 - 335.
[5] Trial ts 384.
[6] Trial ts 329 - 330, 390 - 391.
A recorded child interview was conducted on 22 July 2015. In that interview the complainant said that she had been raped by both the appellant and his brother, who she identified by nicknames.[7] This was the first reference to any involvement on the part of the appellant. A second interview was conducted on 29 February 2016. The complainant's evidence was pre-recorded on 31 August 2016.
[7] Blue appeal book, 8, 11 - 12, 20. In these reasons we will refer to the nickname for the appellant as 'LM' and the nickname for the brother as 'BB'.

Grounds of appeal

The grounds of appeal are as follows:
1.The verdict of guilty is unreasonable and/or cannot be supported, having regard to the evidence.
Particulars
(a)The complainant's evidence was internally inconsistent, relevantly contradicted and inherently improbable in multiple material respects;
(b)It was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty given the inconclusive evidence as to penetration.
2.The trial judge erred in directing the jury that there was, '...no evidence as to whether or not there was (sic) injuries' and that it should not speculate about, ' ...whether you expect, if there has been anal penetration, [the complainant] would have had injuries...'.
3.The trial judge erred in directing the jury that it have no regard to the evidence of [PN] that the complainant's post-offence behaviour was 'normal', as this would involve speculation because, 'There is no evidence of what emotion a nine-year-old might display in the circumstances of this case'.
It is convenient to deal with grounds 2 and 3 before ground 1.

Ground 2 - the evidence

Although the complainant said in her interviews that she felt pain and was crying at the time of the penetration, she did not say that she suffered any injuries. Towards the end of the first interview, when asked whether she noticed anything different about her body, she said, 'No'. When asked whether afterwards she felt pain or was sore, she said, 'No'.[8] In the second interview she was asked whether there was any bleeding afterwards and she said, 'No'. She was asked whether she noticed anything different about her body and she said, 'No'. She was asked whether her body was sore in any way and she said she was a bit itchy on her hands and bottom, and that she had a 'serious feeling' about her bottom.[9]
[8] Blue appeal book 36.
[9] Blue appeal book 42 - 43.
The first nurse to examine the complainant was Marion Mikaere. No complaint of sexual penetration was made to Ms Mikaere. However, she examined the complainant's legs as part of her assessment. There was no bruising or any signs of trauma to the complainant's legs. Ms Mikaere did not conduct a genital or anal examination, though she did examine the front of the complainant's genitalia.[10]
[10] Trial ts 388 - 389.
The second nurse did not conduct an examination as she was told by the complainant that the incident had happened some months prior to the meeting.[11]
[11] Trial ts 395 - 396.

Ground 2 - the closing addresses

The only reference by the prosecutor to any evidence of physical consequences arising from the alleged penetration was to the evidence given by the complainant in the second interview, where she said that her hands and bottom were a bit itchy and that her bottom had 'a serious feeling'.[12]
[12] Closing addresses ts 21.
Counsel for the appellant said the following in closing:[13]
And you might think that if a nine year old was raped anally by two adult men, she would have to have injuries, that it would be impossible for her, immediately afterwards, to have the composure to appear her normal self.
Later counsel said:[14]
You might have also noticed [the complainant] said she didn't feel any pain. Now, she's a child, apparently raped by two adult men that she described as pushing at her and going further and further, and she says she felt no pain afterwards. She was asked if she noticed anything different about her body afterwards and she says no. She is asked later more specifically - this is still in her first interview with the police - if she felt pain or sore anywhere afterwards and she says no.
How could that be possible if she had just been raped. She was nine years old, or younger, at the time, apparently raped more than once by adult men, and there was no evidence of any lubrication being used and her body felt no different afterwards. You might think that that just doesn't add up.
[13] Closing addresses ts 24.
[14] Closing addresses ts 30.

Ground 2 - directions

The trial judge gave the standard jury direction in regards to speculation and then applied this to the issue of injuries. His Honour said:[15]
You've heard all the evidence you're going to hear in this case and you must not speculate or guess about matters that are not in evidence or look for theories that are not supportive of that evidence. As the judges of the facts you reach your verdict on the evidence that you've heard in this courtroom and nothing else. In the course of addresses today you've been invited to speculate on some matters. Maybe as to whether or not there was injuries, whether you expect if there has been anal penetration [the complainant] would have had injuries.
There has been no evidence in relation to that, so you don't speculate about it. There's simply no evidence. The only evidence is the fact that she was examined from the front of her vagina by Ms Martin (sic) -Ms Norris's offsider, whose name escapes me for the moment - but there was no evidence of any examination of her anus. She said she was raped. Her evidence was that she said she was raped and others said when asked about the incident said that she was raped.
I don't know that it was ever suggested that she said she was raped in the anus, other than when she reported the matter and it was investigated by the police. It has been suggested that, you know, there has been no forensic. That's right, there are no forensics, but don't speculate as to what they might have shown. It's not evidence. You decide this case on the basis of the evidence you have in this court room and nothing else.
[15] Trial ts 430 - 431.

Ground 2 - appellant's submissions

The appellant submits that the direction relating to the issue of injuries was factually wrong. There was, in fact, uncontradicted evidence from the complainant that could support an inference that she suffered no injury. This evidence is said to be significant because it was capable of affecting an assessment by the jury of the probability that penetration as described by the complainant had occurred.[16]
[16] Appellant's written submissions, white appeal book, 18.

Ground 2 - respondent's submissions

The respondent submits that the directions should be understood as meaning that there was no evidence that a child would be expected to suffer injuries if penetrated in the way described. The respondent says that the trial judge properly directed the jury not to speculate about whether, if the complainant had been anally penetrated as alleged, she would have sustained injuries. There was no evidence that anal penetration of a child would necessarily have caused physical injury. In these circumstances, the respondent submits, it was appropriate for the trial judge to direct the jury not to speculate about whether one would expect to find injuries if the complainant had been anally penetrated as alleged. There was no expert evidence before the jury on that question.[17]
[17] Respondent's written submissions, white appeal book, 36 - 37.

Ground 2 - relevant law

In Simic v The Queen,[18] the High Court considered the proper approach to be taken where it is alleged that a trial judge made an error of fact in addressing the jury. The court adopted what was stated by the Court of Criminal Appeal in R v Cohen & Bateman:[19]
A mistake of the judge as to fact, or an omission to refer to some point in favour of the prisoner, is not, however, a wrong decision of a point of law, but merely comes within the very wide words 'any other ground', so that the appeal should be allowed according as there is or is not a 'miscarriage of justice.' There is such a miscarriage of justice not only where the court comes to the conclusion that the verdict of guilty was wrong, but also when it is of opinion that the mistake of fact or omission on the part of the judge may reasonably be considered to have brought about that verdict, and when, on the whole facts and with a correct direction, the jury might fairly and reasonably have found the appellant not guilty. Then there has been not only a miscarriage of justice but a substantial one, because the appellant has lost the chance which was fairly open to him of being acquitted…If, however, the court in such a case comes to the conclusion that, on the whole of the facts and with a correct direction, the only reasonable and proper verdict would be one of guilty, there is no miscarriage of justice, or at all events no substantial miscarriage of justice within the meaning of the proviso.
[18] Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319.
[19] R v Cohen & Bateman (1909) 2 Cr App R 197, 207, quoted in Simic at 330 - 331.
Since an accused person has a fundamental right to a fair trial, conducted in accordance with the law, the fact that the case not been properly presented to the jury will in some circumstances be enough to show that a miscarriage of justice has occurred. However, there is a fundamental difference between a misdirection of law and a misdirection of fact. The jury is assumed to have followed directions of law and any mistake in that regard is a ground for allowing an appeal, subject to the proviso. In respect of the facts, a trial judge must tell a jury that the facts are for them and that any comments made by the judge as to the facts are not binding on them. Accordingly, where an error of fact is alleged, the appellant bears an onus to show that the misdirection amounted to a miscarriage of justice.[20]
[20] Simic, 331 - 332.
Minor inaccuracies and omissions are unlikely to affect the verdict. What must be shown is that it is reasonably possible that the misdirection may have affected the verdict and that the jury might reasonably have acquitted the appellant if the misstatement had not been made. In considering this question the appellate court must have regard to the gravity of the misstatement as well as the strength of the case against the appellant.[21]
[21] Simic, 331 - 332.

Ground 2 - the merits

It was not correct for the trial judge to tell the jury that there was no evidence regarding the absence of injury. The evidence of the complainant in the first and second interviews was capable of supporting an inference that she had not suffered any physical injury. Whilst it was correct that Ms Mikaere had not conducted an examination of the complainant's anus, it was not correct to say that this was the only evidence relevant to this issue.
It is not uncommon in cases involving alleged sexual penetration for a medical witness to give evidence that, though there are no observable injuries, it is possible for the particular act of penetration to have occurred without causing visible injuries. There was no such evidence in this case. But the presence or absence of such evidence does not render evidence as to the absence of injury irrelevant. There may in some cases be an explanation for the absence of injury that may enable a jury to give less weight to that fact. However, absence of injury is a factor that remains relevant.
Whether injuries might be expected in a particular case is very much dependent on the nature and force of the acts alleged. In this case, the complainant, a 9‑year‑old girl, described being forcefully penetrated by two adult men and that she experienced some pain whilst this was occurring. It was open to the jury to apply their common sense and experience of life in assessing whether injuries would be expected in these circumstances. This was not a question of speculation. The jury was not precluded by the absence of expert evidence from making an assessment as to whether it was likely that injuries would have occurred in the circumstances described by the complainant.
It may be that the intention of the trial judge was, as the respondent suggests, only to address the question of whether a 9‑year‑old child would necessarily suffer injuries in the circumstances alleged. That is not, however, a satisfactory answer for two reasons. Firstly, in the last sentence of the first paragraph of the direction, his Honour refers to two things 'whether or not there was injuries' and 'whether you expect if there has been anal penetration' the complainant would have had injuries. His Honour's statement that there was no evidence in relation to 'that' could only be understood as referring both to the actual existence of injuries and the likelihood of them occurring in the circumstances. Secondly, even if the intention was not to suggest to the jury that evidence from the complainant that could support an inference that no injuries had been suffered should be ignored, that was the practical effect of the direction.
In the context of the live issues of this case, to say that there was 'simply no evidence' as to 'whether or not there was injuries, whether you expect if there has been an anal penetration' there would be injuries, could only be understood by the jury as meaning that there was no evidence upon which they could conclude that the complainant did not, in fact, suffer any injury. This impression was reinforced by referring to the evidence from Ms Mikaere regarding there being no examination of the anus as being 'the only evidence'.
The direction given by the trial judge was in error. There was a perceptible risk of a miscarriage of justice in that the jury is likely to have interpreted the direction as meaning that there was no evidence upon which they could conclude that injuries had not occurred and, furthermore, that it was not open for them to use absence of injury as a factor in determining whether the alleged acts of penetration had occurred. This was evidence that was capable of affecting the assessment by the jury of whether penetration had occurred. It is reasonably possible that the misdirection affected the verdict, taking into account the nature of the misstatement and the other evidence in the case.

Ground 3 - the evidence

PN is a cousin of the complainant. The complainant refers to her as her sister. PN was one of the two sisters who the complainant said she was with immediately before and immediately after the incident. PN said that on a date she could not recall, some time before a sport carnival, she walked to a telephone box that is near the house where the appellant and his brother live. After making a telephone call to her mother, PN walked back to her house. As she did so, she saw the complainant and her younger sister on the front verandah of the house. The younger sister was aged 4 or 5 at the time. PN went to the house and saw the complainant in the lounge room. She told the complainant and her younger sister that they were coming with her to the shop. The three girls then walked to the shop and then to the complainant's home.[22]
[22] Trial ts 359 - 361.

In cross‑examination by counsel for the appellant's brother, PN gave the following evidence:[23]
When you saw [the complainant] that day, she wasn't crying, was she? ‑‑‑ No.
She wasn't upset, was she? ‑‑‑ No.
She didn't say she had any pain? ‑‑‑ No.
She didn't say anything bad had happened to her? ‑‑‑ No.
[23] Trial ts 362.
Under cross‑examination by the appellant's counsel, PN gave the following evidence:[24]
[24] Trial ts 365.
And when [the complainant] said she had been offered a Snake lolly, that was all she said to you, wasn't it? ‑‑‑ Yes.
And you didn't see anyone offer her the Snake lolly, did you? ‑‑‑ No.
And [the complainant] didn't yell at you to come over to her, did she? ‑‑‑ No.
And [the complainant] didn't say to you why did you leave her? --- No.
And when she said she had been given a Snake lolly she seemed okay to you. She wasn't crying? --- No.
Did she seem her usual self? --- No. What's that?
Did she seem normal? --- Normal.
Yes? --- Well, she was okay.
Okay? --- But I saw [the complainant] was eating a Snake lolly.
This evidence contrasted with that of the complainant. The complainant said that she had called out to PN after being raped and asked why she (PN) had left her at the house. She said she was upset at the time.[25]
[25] Prerecording ts 224, 231 - 232.

Ground 3 - closing addresses

Counsel for the prosecution did not refer to this evidence in his closing address.
Counsel for the brother referred to inconsistencies between the evidence of PN and the complainant and, in particular, said:[26]
And when she saw [the complainant] that day, she wasn't crying, she wasn't upset, she wasn't in pain, and she didn't say anything had happened to her.
[26] Closing addresses ts 44.
Counsel for the appellant dealt with the evidence in more detail. She said:[27]
[PN] testified that when she saw [the complainant] on the veranda of the red house, that [the complainant's sister] was there with [the complainant]. And then also take a look at [the complainant's] demeanour afterwards. [The complainant's] evidence is that after she left the red house, after she says she has been raped, she was really angry and she was crying loudly and, of course, that's what you would expect if a young child had been abused in that way.
The problem is, it's completely at odds with [PN's] evidence. [PN] testified that when she saw [the complainant] on the veranda of that red house, that [the complainant] told her that a man had offered her a snake lolly, that [the complainant] was not upset. She was not crying. She didn't say she had any pain. She didn't say anything bad had happened to her. She testified that [the complainant] seemed normal, that she was okay.
[27] Closing addresses ts 24.
Counsel referred to other aspects of inconsistency between the evidence of PN and of the complainant and then said:[28]
And if [the complainant] is directly contradicted by [PN] on fundamental matters like going to the house with [PN], [PN] leaving her at the house, [PN] being inside the parents' bedroom, [the complainant] seeing [PN] coming from the shops afterwards, [the complainant] being really angry and crying loudly afterwards, how can you accept [the complainant's] evidence without any reservation that [the appellant] says what she says he did - did what she says he did.
[The complainant] is young. That could explain away some inconsistencies in what she says happened and how it happened, but it can't explain away all these fundamental inconsistencies. And you might find you simply can't rely on her beyond a reasonable doubt to be satisfied that [the appellant] raped her. And if you do believe and accept [PN's] evidence that [PN] never left her at the house - if you believe [PN] on these important points, you should reject [the complainant's] evidence.
If you simply can't reconcile the two - [PN] and [the complainant's] evidence - it would still have to leave you with a reasonable doubt about what [the complainant] says happened. And [PN's] evidence, really, is what reasonable doubt is all about. If you find that, just maybe, [PN] is right about never leaving [the complainant] at the house, or it maybe just right that [the complainant] seemed her normal self when she saw her right afterwards, that would have to raise a reasonable doubt as to whether this event occurred at all.
[28] Closing addresses ts 24 - 25.

Ground 3 - directions

The trial judge gave a direction in respect to the demeanour of the complainant. It is clear that this direction was given in response to the submissions made by counsel for the appellant regarding the evidence of PN. His Honour said:[29]
In this case it was also suggested that there was an absence of any emotion being displayed.
There's no evidence of what emotion a nine year old might display in the circumstances of this case. You don't have that, don't speculate on it. You come into this courtroom with your common sense and experience. You assess the evidence objective, impartially, fairly and in that way you will arrive at your verdict. But you don't speculate about matters that are not in evidence. The evidence is what the witnesses have said when they gave evidence in this courtroom and it's their answers to questions.
[29] Trial ts 431 - 432.

Ground 3 - appellant's submissions

The appellant submits that the direction of the trial judge was erroneous and had the effect of unfairly withdrawing from the jury a relevant consideration in the assessment of the complainant's credit, that is, the evidence of PN regarding the appearance of the complainant. It is submitted that it is not a pre-condition of the reception of evidence of post-offence distress that there be expert evidence before the court regarding the usual behaviour of a person in the position of the complainant.[30]
[30] Appellant's written submissions, white appeal book, 19 - 20.
The appellant submits that the evidence of PN regarding the complainant's appearance and conduct immediately following the alleged incident was relevant and admissible. The evidence is said to be significant because it contradicted the complainant's account and rendered the occurrence of the alleged act of penetration less likely. It is said that the direction had the effect of telling the jury to disregard PN's evidence and thereby deprived the appellant of a reasonable opportunity of an acquittal.[31]
[31] Appellant's written submissions, white appeal book, 20.

Ground 3 - respondent's submissions

The respondent conceded that ground 3 was made out.[32]
[32] Respondent's written submissions, white appeal book, 40.
The respondent submits that non‑expert opinion evidence is admissible in regard to matters such as a person's emotional state. In this regard, the respondent refers to Helton v Allen,[33] R v Ireland [No 2],[34] and Grubisic v The State of Western Australia.[35] PN gave evidence of how the complainant appeared to her. That evidence was admissible and was a matter for the jury to consider in assessing the complainant's credibility. The respondent accepts that his Honour was wrong to, in effect, direct the jury that they could not have regard to PN's evidence.[36]
[33] Helton v Allen [1940] HCA 20; (1940) 63 CLR 691.
[34] R v Ireland [No 2] [1971] SASR 6.
[35] Grubisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524.
[36] Respondent's written submissions, white appeal book, 38 - 39.
In written submissions the respondent suggested that this case is analogous to OKS v The State of Western Australia[37] in that the trial judge's direction prohibited the jury from engaging in a process of reasoning favourable to the appellant in relation to fact-finding concerning a child complainant's honesty and reliability as a witness. In OKS the proviso was applied and the appeal was dismissed on the ground that no substantial miscarriage of justice had occurred. That was on the basis that other directions concerning lies, the subject matter of the erroneous direction, overcame the problem arising from it.[38] The same could not be said in the present case. Although the respondent suggested in written submissions that the nature of the misdirection in this case did not preclude the court from applying the proviso,[39] on the hearing of the appeal, counsel for the respondent properly conceded that the proviso could not apply in the circumstances of this case.[40]
[37] OKS v The State of Western Australia [2018] WASCA 48; (2018) 52 WAR 482.
[38] OKS [132](d), (e) and (f), [134], [180].
[39] Respondent's written submissions, white appeal book, 40 - 41.
[40] Appeal ts 31 - 32.

Ground 3 - the merits

The relevant legal principles regarding a misdirection of fact are the same as those referred to in respect of ground 2.
There is no doubt that the evidence of PN regarding the demeanour of the complainant immediately after the alleged incident was relevant and admissible. Insofar as her evidence included her impressions that the complainant was 'normal' and 'okay' and that this was an expression of her opinion, it was admissible as a non-expert opinion.[41] This evidence was relevant both in assessing the complainant's credibility and in assessing whether the alleged acts of penetration had occurred. PN's evidence as to the complainant's demeanour contrasted sharply with the complainant's own account. Given what the complainant said had occurred, evidence as to lack of any distress was relevant.
[41] See Grubisic.
Expert evidence as to how a child who suffers sexual abuse may behave is admissible pursuant to s 36BE of the Evidence Act 1906 (WA). It may be that this is what the trial judge had in mind when he said that there was no evidence of what emotion a 9‑year‑old might display in the circumstances of this case. It is, of course, true that there was no such expert evidence in this case, but that was an issue that was not raised at the trial. On the other hand, there was relevant and admissible evidence as to the demeanour of this particular complainant.
It may be that the trial judge overlooked this evidence, or did not have it in mind in giving the direction set out above. Alternatively, his Honour may have intended to convey a limited point concerning PN's evidence. Part of PN's evidence was that the complainant appeared to be normal. The judge may have intended to convey that, in evaluating that evidence, the jury should bear in mind that there was no expert evidence as to what is normal, without intending to exclude this aspect of PN's evidence from consideration by the jury. However, the judge did not tell the jury that they were entitled to take into account PN's evidence in this respect.
Whatever was intended by the trial judge, there was a perceptible risk that the jury would understand the direction as meaning that there was no evidence relevant to the complainant's demeanour following the incident. In the circumstances of this case, that is likely to have had the effect of causing the jury to disregard the evidence of PN.
The evidence of PN was capable of affecting the jury's assessment of the credibility of the complainant and the likelihood that the alleged acts of penetration had occurred. The direction of the trial judge was in error. The jury was likely to have interpreted the direction as meaning that there was no evidence of distress and, furthermore, that it was not open to them to use the evidence of PN in determining whether the alleged acts of penetration had occurred. Given the conflict between PN's evidence and that of the complainant, and given that the State relied on the complainant's evidence of her post offence conduct, this aspect of PN's evidence was not without significance. It is reasonably possible that the misdirection affected the verdict, taking into account the nature of the misstatement and the other evidence in the case.

Ground 1 - relevant law

This court has recently restated the principles applicable to a ground of appeal that a verdict is unreasonable or cannot be supported by the evidence in Wells v The State of Western Australia.[42] They may be summarised as follows:
1.The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all of the circumstances, it would be dangerous to permit the verdict to stand.
2.The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
3.That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
4.In answering that question, the appeal court must pay full regard to the consideration that the jury is entrusted with the primary responsibility to determine guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.
5.A doubt expressed by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
6.If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowances for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict.
7.The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.
[42] Wells v The State of Western Australia [2017] WASCA 27 [13].
In the present case, the appellant submits that the evidence at trial was deficient in two distinct respects. Firstly, that the complainant's evidence was internally inconsistent, relevantly contradicted by other evidence and inherently improbable such that no jury could have been satisfied beyond reasonable doubt based upon her evidence that the alleged incidents had occurred. Secondly, that the complainant's evidence as to penetration was inconclusive.
The respondent submitted that if only the second point succeeded, this should result in the substitution of a verdict of guilty of the alternative offence of indecent dealing. However, at the hearing of the appeal, and given the concession made in respect of ground 3, counsel for the respondent accepted that the effect of success on the second aspect of ground 1 would lead to an order for a retrial for the alternative offence of indecent dealing.

Ground 1 - the evidence

In her first child witness interview, the complainant said that she had been walking with her little sister and found her bigger sister (PN), that they had then walked inside and a man came and gave her a snake lolly. She said the man put his hand on her mouth, put her in a room and raped her. She said this had occurred in August 2014 when she was 7 years old (she was, in fact, 8 years old in August 2014). She gave a name for the man who offered her the lolly, being a nickname for the appellant's brother.[43] She said that the man took her to a room in the red house that had a cupboard, a window, a fan and a light, but no bed. She said the man stripped her, put her on the cupboard and raped her. She said that she was crying but that there was no-one else in the house to hear her as they had gone to the shop. She said that there was another man in the room who was the brother of the first man. She referred to the second man as 'LM' and gave a description of him. She said that the first man pulled her pants down and pulled his own trousers down. She said that she could not see anything because she was facing the wall. The man was behind her. She said that it was whilst in this position that the first man had raped her and that the second man had raped her too.[44] She was asked to explain what she meant by being 'raped'. The evidence in this regard was as follows:[45]
[43] Blue appeal book, 8 - 12. In these reasons we will refer to this nickname as 'BB'.
[44] Blue appeal book, 19 - 23.
[45] Blue appeal book, 23 - 24. The words in brackets appear in the transcript of the interview but appear to be insertions.
QMm hm. Okay. So when you say he raped you, what part of his body was touching your body?
AUm in the back
QIn the back?
AYeah
QOkay, in the back of what?
AMy -
QDo you have a name for that part of your body?
AYeah
QYeah. What is it?
AGoonah (bottom)
QGoonah (bottom)
AYeah
QOkay and is that what you call the back part of your body?
AYeah
QYeah and and what's that part used for? What do you use it for usually, that part of your body?
AWe use it for toilet
The complainant was then asked questions that clarified that she was talking about her anus.[46] She was then asked:[47]
[46] Blue appeal book, 24 - 25.
[47] Blue appeal book, 25 - 26. The words in round brackets appear in the transcript of the interview but appear to be insertions.
QOkay okay so what part of his - his body was touching um your goonah (bottom) then?
AUm his goolud (penis or scrotum)
QSorry?
AGoolud (scrotum or penis)
QGoolud and who who am I saying that right goolud?
AYeah
QYeah. Who has a goolud?
AUm [BB]
QMm hm and who else has goolud[?]
AUm [LM]
QHm mm do do boys or girls have goolud?
ANo Girls have bujoo (vagina) and boys have goolud
The complainant was then asked questions that clarified that she was talking about the penis because she said that it could be used for urination and for a condom.[48] She then gave the following evidence:[49]
[48] Blue appeal book, 26.
[49] Blue appeal book, 26 - 27. The words in round brackets appear in the transcript of the interview but appear to be insertions.
QYeah. Okay so you're saying his - his goolud was - was touching your goona? i.e. his scrotum or penis touching your bottom?
AYeah
QYeah and what what was he doing with his goolud?
AUm he was muny baad (having sex)
QHe was what?
AMuny baad (having sex).
QWhat's that[?]
AUm like when they go further and further
QFurther and further
AYeah
QFurther and further where?
ALike moving moving
QMoving
AYeah
QMm hm and moving - moving where?
ALike pushing
QPushing
AYeah
QYeah. And pushing pushing where?
APushing me at the wall
QYeah but where was his goolud pushing?
AAt my goona (bottom)
QYeah and what could you feel?
AUm goolud (penis)
The complainant said that this stopped when she was crying. However, she said that the other man raped her as well. She said they were taking turns 'like them taking shot after shot'. She said they were talking to each other saying, 'Your turn, your turn'. She gave a description of the second man and said that he did the same thing to her as the first man.[50] In this regard, she said:[51]
[50] Blue appeal book, 28 - 30.
[51] Blue appeal book, 30 - 31. The words in round brackets appear in the transcript of the interview but appear to be insertions.
QOkay and what part of [LM's] body was touching your body?
AOn the back
QThe back
AYeah
QAnd what - what name did you say that part of the body was earlier?
AUm goona (bottom)
QGoorah
AGoona (bottom)
QGoona. And what part of [LM's] body was touching you?
AGoolud (penis)
QGoolud and what was he doing with his goolud?
AUm moony (sex)
QSorry?
AMoony baad (having sex)
QSay that again?
AMoony (sex)
QOkay and what what could you feel on your body?
AUm goolud
QMm hm yeah and what was he doing with his goolud?
AHe was doing rude thing
QRude thing. Was there any other parts of his body touching your body?
AGumbiny (scrotum)
QSorry?
AGumbiny (scrotum)
QWhat's that?
AUm where the two eggs

The complainant said that her two sisters went away and that when she got home she was crying. She said that she spoke to her grandmother, Marie, and told her that the first man raped her.[52]
[52] Blue appeal book, 32.
In the second child witness interview the complainant said she was walking with her two sisters and that they went to the blue house. She briefly referred to what happened at the house but the focus of the questioning was in regard to her visit to the clinic. She said she went to the clinic because she had a cold and was itchy due to ringworm. She said that at that time she was also bleeding because she had her first period. She said that the bleeding did not occur after she went to the blue house and she did not notice anything different about her body other than that she was a bit itchy. She said that she did tell a nurse that she had been touched by some boys at the blue house and that there were three of them.[53]
[53] Blue appeal book, 39 - 44.
The complainant's evidence was pre-recorded. She confirmed that the answers she gave in the two interviews were true.[54] She was then asked:[55]
In the interview - the first interview, you said the house that you went in to was red, and in the second interview, you said the house that you went to was blue. Can you tell us what colour the house was that you went inside of? --- It was red.
… in the first interview, you said that [BB] and [LM] put their goolut in your goona? --- Yes.
Is there another word for 'goona'? --- Arse.
And you said that you use your goona and gura comes out. So is there another word for 'gura'? --- Shit.
… when [BB] and [LM] put their goolut in your goona, how did that make you feel? --- Really sad.
And how did your goona feel? --- Pain.
[54] Prerecording ts 203.
[55] Prerecording ts 204.
It was accepted by counsel for the respondent on the hearing of the appeal that when prosecuting counsel used the word 'in' in these questions that was not accurate insofar as the complainant had not herself used that word in the interviews.[56]
[56] Appeal ts 28 - 29, 37.
In cross‑examination the complainant said that she and her sisters went inside the red house together and that PN went into the parents' bedroom. She said that she and her younger sister were in the lounge room and that the appellant's brother was 'tricking' the younger sister with the snake lolly. She said that initially there were other people at the red house but they left to go to the shop.[57] She said that she went home and told her grandfather what had happened, but later in her evidence she said that she did not in fact do so.[58] After arriving home she saw PN coming from the shop. She said that she was angry and crying and shouted at PN, asking her where she had gone and why she had left her alone. She said that she tried to tell PN she had been raped but that PN did not listen and walked away.[59] She said that she did not tell anyone for a long time because she was unaware of the names of the men.[60] A few weeks later, or perhaps a 'little bit more', she went to the clinic because she felt sick, had ringworm and had her period for the first time. The nurse asked her whether she had been interfered with and she said 'no'.[61] At some point after the visit to the clinic she told her great-grandmother and her mother that she was raped by 'LM' and 'BB'. When asked what she understood by the word 'rape' she said that it meant to 'be in another house and then they will do silly things'.[62]
[57] Prerecording ts 223 - 224, 236 - 237.
[58] Prerecording ts 215, 225, 230.
[59] Prerecording ts 224 - 225, 231 - 232.
[60] Prerecording ts 215, 222.
[61] Prerecording ts 207 - 208, 214.
[62] Prerecording ts 212 - 214.
Some of PN's evidence has been referred to earlier. PN also said that on a day in 2015 after using the telephone box she went to the red house. She said she was alone when she went there but saw the complainant and her younger sister standing on the front verandah. Three younger children of the occupants were also present. She did not go inside the house but yelled at the complainant to come with her and the complainant did so. She, the complainant and the younger sister then left and went to the shop together. She said that the complainant told her that a boy had offered her a snake lolly and she saw that the complainant was eating such a lolly. The complainant was not crying or upset, did not complain of pain or that anything bad happened and seemed normal, or at least okay. She said that she would not have left the complainant at the red house as the complainant is not allowed to go to strangers' houses. This was why she called the complainant away.[63]
[63] Trial ts 362 - 365.
The complainant's mother gave evidence that in 2015 she took the complainant to the clinic because the complainant had her period. The complainant did not tell her that she had been raped or sexually abused.[64]
[64] Trial ts 344 - 345.
The first nurse to see the complainant, Ms Mikaere, gave evidence that she saw the complainant on 6 July 2015 with her mother at the clinic. She asked the complainant whether she had been interfered with and the complainant answered 'no'. She examined the complainant's legs and the front of her genitalia. There was new dark blood on the complainant's legs but no bruising, abrasions or trauma.[65]
[65] Trial ts 388 - 389.
The complainant's great-grandmother gave evidence that after being told by the complainant's mother that the complainant was bleeding she asked the complainant whether she had been raped. The complainant told her that the brother had sex with her. The complainant told her that the brother showed her a snake lolly, grabbed her, pulled her inside and 'we had sex'. The complainant was crying when she said this. The great-grandmother organised a meeting with a nurse at the clinic. The great-grandmother did not say that the complainant made any complaint of being sexually assaulted by the appellant.[66]
[66] Trial ts 377 - 379, 382 - 383.
The complainant's aunt gave evidence that she was present when the grandmother asked the complainant some questions. She overheard the complainant say that the brother has showed her a lolly and raped her. She said that the complainant did not mention 'LM'.[67]
[67] Trial ts 356 - 357.
The second nurse who saw the complainant, Roselyn Norris, gave evidence that as a result of information received from Ms Mikaere she conducted a family visit. She said that on the morning of 7 July 2015 the grandmother contacted her indicating that the complainant had reported that she had been raped. A meeting then occurred at the clinic on the afternoon of 7 July 2015. The complainant reported that she had been raped by the brother at a house in the community on a late afternoon some months earlier.[68]
[68] Trial ts 390 - 391, 394 - 396.
There was police evidence regarding the relevant locations, including photographs. There was no forensic evidence.

Ground 1 - appellant's submissions

The appellant submits that there are a number of material inconsistencies in the complainant's evidence, and between her evidence and that of other witnesses. These include:[69]
(1)That the complainant, when asked by Ms Mikaere, denied being interfered with.
(2)Most significantly, that the complainant made inconsistent statements regarding the number of offenders and the involvement of the appellant. The complaints made to the grandmother and Ms Norris referred only to the appellant's brother. The first mention of the appellant was in the first child witness interview. The appellant also makes the point that in the second interview there is a reference to three men being present.
(3)The complainant stated that she reported the sexual assault to her grandfather but, in a statement read to the jury, the grandfather said that no complaint had been made to him.
(4)It is said that there are differences in the complainant's accounts as to the impact of the incident. In the first interview she states that she did not have any physical injury whereas in the second interview she reports that her hands and bottom felt a bit itchy and that she had a 'serious feeling'. In her pre‑recorded evidence she said that she felt pain in her goona.
(5)In the first interview she refers to the house being red whereas in the second interview she refers to it being blue, though this was clarified in her pre‑recorded evidence.
[69] Appellant's written submissions, white appeal book, 13 - 14; appeal ts 15 - 19.
The appellant also points to the differences between the evidence of PN and the complainant. In particular, as to whether the complainant entered the house in company with her sisters, as to what was said by the complainant after leaving the house and as to the demeanour of the complainant.[70]
[70] Appellant's written submissions, white appeal book, 14.
The appellant says that there is also inherent ambiguity in the complainant's evidence as to penetration, such that penetration could not be said to have been proved beyond reasonable doubt.[71]
[71] Appellant's written submissions, white appeal book, 14; appeal ts 19 - 21.

Ground 1 - respondent's submissions

The respondent accepts that the prosecution case depended critically on the jury accepting the evidence of the complainant. However, taking into account the complainant's young age, her level of education, her unfamiliarity with the legal process and her lack of sexual experience it was to be expected she would not always recall matters accurately and would not be able to recite with precision in English the actual mechanics of the sexual acts which the appellant and his brother were alleged to have committed against her. It is said that the existence of inconsistencies does not in itself mean that the account given is not generally correct or not correct in material respects.[72]
[72] Respondent's written submissions, white appeal book, 42 - 43.
The inconsistencies relied upon by the appellant were referred to in defence counsel's closing address and in summing up by the trial judge. These are matters that the jury would have been well aware of and would have been taken into account by the jury in assessing whether they were satisfied beyond reasonable doubt that the complainant's account was truthful and reliable. The jury were directed that because of the crucial nature of the complainant's evidence they should 'carefully scrutinise' her evidence. They were specifically reminded that the complainant did not mention the appellant when she spoke to her grandmother and that she first mentioned him during the first child witness interview some weeks later.[73]
[73] Respondent's written submissions, white appeal book, 43.
As to the issue of penetration, the respondent submits that the jury was entitled to find that the complainant was, in her own way, given her age and lack of knowledge of the English words describing what was done to her, saying that she was anally penetrated by the appellant's penis.[74]
[74] Respondent's written submissions, white appeal book, 46.

Ground 1 - the merits

The complainant's evidence was pre‑recorded and we have the advantage of having been able to view that evidence. In this regard the jury has no particular advantage in respect of the assessment of the complainant's credibility. It is apparent from the interviews and the evidence that the complainant was a shy and reticent child, and that she used words in her own language to describe what had occurred, some of which were not understood or clarified by the interviewer. In particular, the phrase 'moony bad' or 'moony but' was never satisfactorily explained.
It is true that there are some inconsistencies in the accounts given by the complainant over time. The most significant of these is that the appellant is not identified as a participant until the first police interview. However, this needs to be understood in the context that the first police interview was the first occasion when the complainant was asked to provide a detailed account of what had occurred. She was thereafter consistent in the second interview and her pre‑recorded evidence in saying that the appellant was also involved.
The inconsistencies relied upon by the appellant are matters that are relevant to an assessment of the complainant's credibility and reliability as a witness. However they do not, either alone or in combination, result in a conclusion that it would not have been open to the jury to accept her evidence or conclude that the appellant was guilty as charged.
The conflict between the complainant's evidence and PN's evidence was a matter for the jury to evaluate. There were inconsistencies in PN's evidence that meant it was open to the jury to reject her evidence. PN's evidence did not preclude satisfaction beyond reasonable doubt of the accuracy of the complainant's evidence.
Regarding the question of penetration, the interpretation of the phrase 'moony but' has to be put aside since there was no admissible evidence in that regard. However the complainant's description of what occurred, including that she was pushed against the wall, that the pressing against her went 'further and further', that she could feel both the penis and scrotum of the appellant and his brother, and that she experienced some pain whilst this was occurring (which caused her to cry) is evidence from which it was open to the jury to infer that penetration occurred.
For the above reasons ground 1 cannot succeed.

Conclusion

Grounds 2 and 3 succeed but ground 1 does not. The State accepted that the proviso could not operate in respect of ground 3, that is, it did not ultimately seek to argue that the error did not occasion any substantial miscarriage of justice. We are independently of the view that the proviso cannot operate in respect of either ground 2 or ground 3. Those errors related to material issues in the trial and had the potential to affect the conclusion of the jury as to whether penetration, as alleged, occurred. There is a real possibility that this could have affected the verdict. An error of this kind which may have affected the verdict must be a substantial miscarriage of justice.[75]
[75] Simic, 332.
For those reasons, we made the orders allowing the appeal and setting aside the conviction. The appropriate further order is that there be a retrial on the original count of sexual penetration of a child.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KR
Associate to the Honorable Justice Hall
18 JANUARY 2019